The strange evolution of the prosecution’s asphyxiation charge.
In his motion for a new trial, former Minneapolis police officer Derek Chauvin, through his attorney Eric Nelson, made an obvious point. Quoting case law, Nelson reminded the court of “the prosecutor’s inherently unique role in the criminal justice system, which mandates that the prosecutor not act as a zealous advocate for criminal punishment, but as the representative of the people in an effort to seek justice.”
Had the State prosecutors set out to honor this mandate and seek justice, they would not have presented the medical evidence they did. In fact, they would not have charged Derek Chauvin with second-degree murder or charged his colleagues as accomplices.
Prosecutors knew they had a problem. To make the murder charge stick in the Chauvin case, they had to secure an “asphyxia” diagnosis from a physician.
If justice were the goal, prosecutors would have taken two critical steps to assure that the medical testimony supported the charge of murder. The first was to run a controlled experiment to see if Chauvin’s actions could possibly have resulted in the death of George Floyd. The second was to make the court and the defense aware of the potential compromise of its star medical witness, Hennepin County Medical Examiner Dr. Andrew Baker.
Dr. John Dunn did run such an experiment, and he made a video of the same. Dr. Dunn comes well credentialed. He is a former member and chair of the medico-legal committee for the American College of Emergency Physicians, board certified in legal medicine, and co-author with a pathologist of a chapter on forensics for a text published by the American College of Legal Medicine. He has followed the case from the beginning, studied the videos, and reviewed Floyd’s autopsy report.
Not content to speculate, Dr. Dunn enlisted the help of two men to determine whether or not the prone restraint used by Chauvin on Floyd could have asphyxiated and killed him. He recruited a 230-pound man to play the role of Floyd and a 170-pound man to play Chauvin’s role. At the time of the incident, Floyd weighed 223 pounds, and Chauvin, with his gear, weighed about 170.
The Chauvin proxy applied the handcuffs and placed the “suspect” in the prone restraint position. For a 10-minute period, he put his left knee on the man’s neck and shoulder, matching the pressure Chauvin put on Floyd. Throughout the experiment, Dunn used a pulse oximeter to monitor the oxygen level and pulse of the man being held in this prone restraint.
As Dunn attests and the video shows, “The results were that there was no impact on the oxygen level or the pulse of the restrained man for the full 10 minutes, and no ill effects at the time or two days later when he was interviewed.” Arguably, Dunn’s experiment has more evidentiary value than any contrary proof offered by the State.
Dunn believes that Floyd died from cardiac arrhythmia — a lethal heart rhythm. He observes that Floyd was suffering from severe cardiac disease aggravated by the drugs in his system including methamphetamine and fentanyl. “Exertion and excitement from intoxication and the arrest situation along with the amphetamine stimulant drug effects increase the arrhythmia risk,” says Dunn.
As the State’s charging documents make clear, even the officers on the scene were aware that Floyd may have been suffering from the severe effects of intoxicants. While restraining Floyd, rookie officer Thomas Lane said to Chauvin, “I am worried about excited delirium or whatever.” Chauvin responded, “That’s why we have him on his stomach.” Chauvin was acting in the interest of Floyd’s safety in his positioning, not acting to kill him.
A week or so before Floyd’s death, I saw a Kansas City police officer use the same technique on a prone female suspect for at least 10 minutes. My thought on seeing this: ‘Thank God, she’s white.” Not wanting to make the officer nervous — the woman was large and violent — I chose not to shoot video. In retrospect I wish I had. The technique does not look good, but the officer in question was able to restrain the woman until backup arrived with no apparent ill effect to her or to him.
Prosecutors knew they had a problem. To make the murder charge stick in the Chauvin case, they had to secure an “asphyxia” diagnosis from a physician. Neither Dr. Baker nor another forensic pathologist who reviewed the case for prosecutors supported that diagnosis.
So prosecutors doctor-shopped until the congenial Dr. Martin Tobin, a pulmonologist, essentially recruited himself to the case. With no relevant experience in death investigation, Dr. Tobin charmed the jury and the New York Times into believing that Floyd’s drug use and heart problems had nothing to do with his death.
Key to Dr. Tobin’s testimony was his contention that Floyd’s hypopharynx was cut off by neck pressure. Under oath, Dr. Tobin testified to the existence of research that supports his contention implicating a closed-off hypopharynx in asphyxia deaths. But, tellingly, prosecutors failed to present any such research in support of Tobin’s claim.
Tobin’s testimony would not have sufficed without at least some support from Dr. Baker. In Chauvin’s request for a new trial, his attorney cited “evidence that, under pressure from prosecutors, Dr. Baker altered his findings and conclusions regarding the death of George Floyd.” This is not an idle accusation.
In the way of background, Baker prepared the autopsy on May 26, 2020, the day after Floyd died. He met with prosecutors that same day. On May 29, in a criminal complaint charging Chauvin with manslaughter and third-degree murder, the State attested as follows (emphasis added):
The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxiation or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by police, his underlying health conditions and any potential intoxicants in the system likely contributed to his death.
In an amended complaint on June 3, the State upped the charge against Chauvin to “Second Degree Murder — Unintentional — While Committing a Felony.” The complaint noted the results of the toxicology test, namely “the presence of fentanyl and evidence of recent methamphetamine use.”
Now, however, Baker supplied the State with one new detail that would prove to be essential for conviction: “The ME listed the cause of death as “[c]ardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression” (italics added). Baker first announced the “neck compression” detail in a June 1 press release.
In a May 17 article in The American Spectator, George Parry details the nature of the pressure brought to bear on Baker. The conduit for that pressure was Dr. Roger Mitchell, a former Washington, D.C., medical examiner and deputy mayor of Washington. Parry’s source was a motion for sanctions against the prosecution filed by attorneys representing Chauvin’s partner and alleged accomplice, Tou Thao.
Although some questioned Parry’s (and my own) reliance on the Thao motion, three days after Parry’s article the State confirmed that Thao’s attorneys were over the target. Admitted the State in its response to Thao’s motion, “At some point before Dr. Baker issued his findings and autopsy report on June 1, 2020, Dr. Roger Mitchell, who was acquainted with Dr. Baker professionally as a colleague and fellow forensic pathologist, reached out to Dr. Baker, and they discussed this case” (italics added).
Prosecutors go on to say they learned of Mitchell’s conversations with Baker during a routine meeting to discuss the medical aspects of the case on November 5, 2020. “Ultimately,” they report, “the State opted not to utilize Dr. Mitchell as a testifying expert witness.” They should never have even considered him.
On July 2, 2020, Mitchell had given an interview to the Guardian, in which he said, “From what the world has seen, we know that George Floyd’s intoxication, or George Floyd’s heart condition, played absolutely no part in his death.”
“From what the world has seen?” In that one statement, Mitchell summarized the effect a misleading video snippet was having on the State’s case. The mob was now dictating Minnesota justice.
The increasingly radicalized Mitchell was speaking out wherever he could find a microphone. His diagnosis of society’s ills was as skewed as his diagnosis of Floyd’s. Mitchell said on a podcast around the same time as his meeting with the prosecutors, “my people are starving. My people are hungry. My people have foots on their necks…. White supremacy has placed itself at the center disenfranchisement of black and brown people in this country.”
Five prosecutors and a paralegal sat in on the November 2020 meeting with Mitchell. If anyone recorded the conversation, no one provided the defense with the audio. The four defendants — Chauvin, Lane, Thao, and Alexander Keung — have had to rely on the State’s own account of that meeting. Prosecutors surely presented Mitchell’s story in its best possible light, but even that light is troubling.
The accusations against Mitchell in Thao’s motion came from the meeting summary prepared by the State and shared with the defense in a belated document dump. The summary was sufficiently well buried that defense attorney Eric Nelson was unaware of the Mitchell meeting at the time of the trial.
Thao’s motion quotes from the prosecutors’ notes taken at the November 5 meeting with Mitchell. Here are some of the highlights:
“Baker said that he didn’t think the neck compression played a part.”
Dr. Mitchell called Dr. “Baker first to let him know that he was going to be critical of Baker’s findings.”
“In this conversation, Mitchell said, you don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong. Said there was a way to articulate the cause and manner of death that ensures you are telling the truth about what you are observing and via all of the investigation. Mitchell said neck compression has to be in the diagnosis.”
George Parry covered this well, but in brief, Baker told Mitchell neck compression played no role in Floyd’s death, and Mitchell threatened to write a disparaging op-ed about Baker in the Washington Post unless he said it did. Thao’s attorneys knew what they were saying when they demanded “sanctions for prosecutorial misconduct stemming from witness coercion.”
In an angry response that reads as though written by Keith Olbermann, the State answered Thao by saying, “These preposterous accusations are simply false, and Defendant Thao does not offer even a shred of evidence to support this baseless conspiracy theory.” There it is, the ultimate refuge from a losing argument — a charge of “conspiracy theory.”
As Thao’s motion noted, Mitchell was not at all coy about his second cited attempt at coercion, namely his efforts to destroy the career of of Dr. David Fowler, the one medical witness to testify in Chauvin’s defense. But that is a story for another day.
The story for today is Chauvin’s sentencing in two weeks and his request for a new trial. Time after time, prosecutors have failed to honor their “inherently unique role.” On the medical front alone, they either ignored the evidence that cast Chauvin’s guilt into doubt or buried it. If their goal truly is “to seek justice,” they should at the very least run an experiment comparable to the one performed by Dr. Dunn to put their theory of the case to the test. Even police officers deserve due process, not just the semblance of it.